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Law of the Sea–Why not?

Ratification of the Law of the Sea Treaty always seemed like a good thing. Both the Commandant and the CNO support it.

I can’t claim to have a full understanding of the treaty, but I have begun to get inklings of why others have reservations about it. As in all things legal, it is subject to interpretation, and the interpretation of others do not necessarily match our own.

In the interest of having a balance view, you might want to spend a few minutes reading what Peter Brookes, a former deputy assistant secretary of defense, has to say about why its not a good idea.

The right of innocent passage seems to be one of the things that is subject to interpretation, and it is not just China and developing countries that see things differently. So do the Canadians. (More here, here, and here.)

4 thoughts on “Law of the Sea–Why not?”

The Brooks article, like most LOS-related material from the Heritage Foundation, has a number of flaws. One obvious one is the claim that the International Seabed Authority will restrict US activities on the US continental shelf. It is clear in the Convention that the ISA’s authority extend only to the seabed beyond national jurisdiction and within that area to the mineral resources of the deep seabed. This would be even more clear were the US to take its permanent seat on the governing Council.

The key issue, however, is whether US interests at sea are best served by a go-it-alone approach or by working under the Law of the Sea Convention. Whether under the Convention or under customary international law, the United States will always need to defend US interests. Sometimes this will involve military challenges such as those conducted under the Navy’s freedom of navigation program. But often military demonstrations are not the right answer: what may seem satisfying in a challenge to Chinese claims may be counterproductive in relations with other rising sea powers such as India and Brazil or straits states such as Indonesia and Malaysia. And when civilian rights at sea are threatened, political interests may cause the US to avoid the cost of military challenges. Being able to rally friends and allies behind the rule of law can be much easier than building support for what may be viewed as a special interest of the United States or its companies.

As to Brooks’ point about redistributing wealth, from the first discussions about creating a new and comprehensive convention to replace the flawed and ambiguous limits in the Geneva Conventions on the Continental Shelf and on the Territorial Sea, the US always supported the idea of an intermediate zone between the continental shelf and the deep seabed in which a portion of revenues would be shared between the coastal state and the world community. This was because the 1958 conventions did not reach agreement as to the outer limit of the the territorial sea or continental shelf (indeed, the only general agreement on the term “continental shelf” was that it extended at least to the 200 meter isobath). The 1958 Convention had two tests: one required that the shelf seafloor to be “adjacent” to the coastal state (a broader term “contiguous” was rejected in the 1958 Convention) and at that time no one thought that distances of more than 200 nautical miles constituted “adjacent.” The second test was one of exploitability – that was added not for broad margin states like the US but for nations like Chile whose shelf dropped off sharply only a few miles from shore. American industry supported efforts to obtain legal clarity through the negotiation of a convention that would provide a widely recognized definition of a broad continental shelf. As the LOS negotiations settled on a 200 mile exclusive economic zone that included the seabed resources within that area, the intermediate zone was left to include only the seafloor beyond the EEZ to the limit of the continental margin (which encompasses the geologic continental shelf, slope and rise). This is what remains of President Nixon’s original proposal for “trusteeship” for the intermediate zone and what was accepted by President Reagan in 1982 and announced to the world when he sent his delegation back to try to resolve the final issues related to deep seabed mining.

One of the key reasons for the difference of position between the Heritage Foundation and the US oil industry is that the development of deep water resources is an activity that requires financial, marketing and technical resources from other countries. Those international resources would put at financial risk by operating beyond the EEZ unless the US follows the provisions of the Convention for assuring that claims are consistent with the provisions of the convention and that revenues from the area beyond 200 miles are shared between the coastal state and the international community as provided in the Convention.

This issue is even more clear with regard to the exploration and exploitation of deep seabed mineral resources beyond national jurisdiction. This is the one part of the LOS Convention in which President Reagan expressed a deep personal interest that preceded his election as President. Deep seabed mining has always been seen as an international activity. The initial mining consortia were all multinational operations, with Canada’s International Nickel, Royal Dutch Shell and Japanese and German consortia having been among the major participants. After the adoption of the 1994 Agreement on implementation of the LOS Convention, all other industrialized states became party to the Convention and as such they and their nationals cannot partner with non-parties in developing deep seabed minerals. And since virtually all mining firms, whether on land or at sea, are owned by foreign firms, the capital required to build a seabed mineral system and access to mineral markets will require foreign participation. The US has effectively restricted the domestic deep seabed mining industry to paper operations unless and until the US becomes party to the Convention. At this time, there are 12 claims to mine sites on the deep ocean floor that are recognized by the International Seabed Authority. The two sites that remain registered under US legislation will not move forward to exploration unless and until the US becomes party to the LOS Convention. That puts Russia with 2 sites and a share in a third, China with 2 sites, India, South Korea, France, Japan, Germany, a consortia of east european states and even the island states of Tonga and Nauru ahead of the United States in moving toward exploitation. And the issue of technology transfer, which was fixed by the 1994 Agreement, has proved to be irrelevant to others since deep ocean systems and mineral processing technology are held by enough foreign firms to provide competition to supply equipment and services to all comers (except, perhaps, the US). Reagan’s dream of a domestic seabed mining industry that would be a secure source of critical and strategic minerals was made possible by the 1994 Agreement. His dream will be lost as long as the US stays outside the Convention.

Brooks also fails to credit the changes brought by the 1994 Agreement on Implementation of the Law of the Sea Convention that fulfilled Reagan’s criteria for an acceptable convention. Most important of these was a permanent US seat on the Council that would give the US a blocking over on any amendments to the seabeds part of the convention, over the rules, regulations and procedures of the ISA (both operational and procedural), over distribution plans for revenues and over any assistance programs that might be considered for developing countries whose mineral-based economies might be damaged by seabed mining. And for as long as the Authority operates on dues of its members, the US would have a blocking vote on the budget of the Authority. Among the rules that are in place and would require US approval to change is a checklist procedure for approving applications for exclusive access to mine sites – exactly the system that was sought by the United States. It is also worth noting that the ISA will have revenues to distribute whether or not the US is party to the Convention, but only by taking its seat in the Council will the US have a say over how they are distributed.

Some opponents of the LOS Convention are fond of citing customary international law and the power of the US Navy as the alternative to joining the LOS Convention. In doing so they ascribe a stability to customary international law that disappeared in 1945 when President Truman made his unilateral declaration over the resources of the continental shelf (limited at that time to the shelf and not the rest of the continental margin). Since that time we have seen the US permit US-flag tuna boats to be impounded by Chile (because we could not risk strengthening a rising socialist movement by using force to enforce our fishing rights off Chilean shores) and the failure of a fleet of 20 Royal Navy frigates and destroyers to defend their historic fishing rights off the shores of Iceland in the “Cod Wars” running from the 1950s to the 1970s.

While the Navy has tremendous power, it cannot compel the cooperation we need in the Proliferation Security Initiative and the anti-piracy activities in the western Indian Ocean. Nor can the US compel other countries to provide port and refueling services, coastal intelligence or local knowledge and operating capacity in the littorals of distant states. US security overseas requires a partnership (hence the sea services’ ‘Cooperative Strategy for 21st Century Sea Power’). Commanders of Pacific Command report that coastal states in the Indian Ocean and South China Sea raise non-party status in every effort to secure regional participation in US maritime security initiatives, both in bilateral discussions and in the IMO. Most recently this point was made by Admiral Sam Locklear in his confirmation hearings. Admiral Locklear’s comments on the importance of joining the Convention seem to have been the impetus for the Heritage Foundation’s recent anti-LOS Convention articles and statements.

One of the dangers of continuing to be an outsider to the Convention is that we weaken the stability it has provided for the past three decades. If the US were to exploit seabed resources beyond the EEZ without abiding by the Convention’s provisions, other countries would have an excuse to follow suit. If that only affected revenue sharing beyond 200 miles, that might not be important, but we have strong evidence that many coastal states, particularly India, China and Brazil, would like to increase their control over foreign activities in the EEZ. And while the Convention does make clear that such claims are not allowed, the fall of the Convention would certainly renew expanded coastal state claims, and enforcement of such claims, over activities in foreign EEZs.

Any claim that customary international law is a viable alternative to the detailed terms of the Law of the Sea Convention has to ignore the 35 years of creeping coastal state jurisdiction between 1945 and 1980 and has to assume that political circumstances would permit US naval power could be brought to play against coastal states whose assistance we need in the full range of international politics. We should all be familiar with the chipping away of maritime freedoms due to cases such as the Chilean impoundment of US tuna boats and the defanging of the Royal Navy when Iceland threatened to withdraw its support for NATO activities in the North Atlantic where it had an essential role in tracking Russian submarines so that politics trumped naval power.

One of the recent complaints that opponents have made about the Law of the Sea Convention is that it is “complicated.” I suggest that people with this complaint start reviewing the volumes of international case law that is part of customary law of the sea. Or that they review the US code as it pertains to ocean resource development. Ocean law is complicated, but the LOS Convention is a contribution to its clarity.

On US interests, the Convention wins hands down. That is why every living Chief of Naval Operations, every living Commandant of the US Coast Guard, the energy industry, the telecommunications industry, US owners of commercial shipping (under both US and foreign flag), the US Chamber of Commerce and the US fishing industry all support US accession to the Convention. It is these armed services and commercial organizations that are on the front line of ocean security and commerce and their views reflect the substantive interests of the United States.

While Peter Brooks provides a simple and readable exposition of a position that is championed by the Heritage Foundation, his position is a simplistic one that ignores the inability of both customary law and military power to stem coastal state encroachment over the use of the seas, especially over foreign littorals. While simplicity is a virtue in an ideological view of the world, it is a weak foundation upon which to rest the interests of the United States at sea. The Law of the Sea Convention has provided relative stability for the past 30 years, but the free ride that stability has provided for the Untied States cannot be taken for granted. That is why the people on the front lines of ocean law and policy are so adamant in their support for US accession to the Law of the Sea Convention.